Prosecutorial Practices and the Duke Lacrosse Case

First, I would like to thank Dan and all the folks at Concurring Opinions for inviting me to spend some time here. I thought I would dive right into a controversial topic to get things started off and post a few thoughts on the Duke lacrosse case. I obviously have no idea what really happened in the house that night, but it has been a fascinating case to observe from a procedural standpoint as a former violent crimes prosecutor. A couple of developments in the past week have been particularly interesting. First, DA Nifong stated that neither he nor anyone in his office has interviewed the alleged victim about the night in question. I frankly find that remarkable, especially in a case so dependent on victim testimony. When I was prosecuting we would have interviewed the victim early and often, both to help establish the facts and to develop additional avenues of investigation. This issue leads to my second and related point, which is that I think this case is an example of how the much maligned grand jury can actually serve an incredibly valuable function. We used grand juries extensively when investigating violent crimes in Washington, D.C. If I had been handling this case, for example, I certainly would have had every non-charged player who was at the party testify before the grand jury, as well as the second dancer who was at the house that night. Bringing as many witnesses before the grand jury as possible both helps to eliminate surprises like the second dancer’s statements to Good Morning America this week and offers the prosecutor invaluable insights from grand jurors about witness credibility, holes in the government’s case, and the like. It will be very interesting to see if this case leads to any evolution in prosecutorial practices in North Carolina in the future.

You may also like...

17 Responses

  1. NCProsecutor says:

    I can provide some insight on both points. With respect to the interview issue, North Carolina has some pretty thorough discovery laws. Interviews with witnesses in preparation for trial are NOT protected by work product, so any notes the DA might have wanted to take during that interview would have been considered a “witness statement” and therefore discoverable. In fact, there is an appellate case here in NC in which the defendant is claiming that prosecutors MUST take notes during such interviews and that those note must then be turned over to defense counsel.

    In the jurisdiction where you prosecuted, I suspect that such interviews were likely protected from discovery. Perhaps you and I would have made a different decision from the one Mike Nifong made in this case, but I hope that this helps (at least partially) explain one of the issues involved with witness interviews here in NC.

    With respect to the grand jury question, investigative grand juries may only be convened — in very limited circumstances in NC (see NCGS 15A-622(h). A prosecutor may list anyone he or she wishes as a witness and they can be subpoenaed to testify before the grand jury, but the prosecutor is not permitted to be in the room when the witness is testifying. For that reason, I have never heard of a victim in a sexual assault case being called to testify before a grand jury.

    In the alternative, a prosecutor can submit a charge to a district court judge for a probable cause hearing pursuant to NCGS 15A-611. That hearing looks more like a trial — the prosecutor, defendant, and defense counsel are present, and witnesses are called and examined and cross-examined. If the presiding judge finds that there is probable cause to believe that the defendant committed the crime alleged, the defendant is bound over to superior court for further proceedings (either a guilty plea or a trial). If the judge finds no probable cause, the case is dismissed.

    I have always found this procedure to be a sort of a “cop out” on the part of the prosecutor. After all, the prosecutor has an obligation to make their own determination about whether or not to proceed, and the probable cause hearing in district court is used to force a judge to make that decision, instead. That’s just weak. And I can’t imagine using one for an allegation with as much public visibility as this one.

    Anyway, I hope this helps.

  2. Jennifer Collins says:

    Thank you for the thoughtful comments — they are incredibly helpful. In D.C., a prosecutor’s interviews notes would indeed often — but not always — have to be turned over to the defense. But to me that possibility would not outweigh the benefits of interviewing the victim. Further, I would not have a problem turning them over in any event — if they are inconsistent with another statement made by the victim, the defense has an absolute right to them; if they are consistent, then obviously there’s no cost in turning them over. Your insights on grand juries are also very interesting. I know NC does not use them in a vigorous way; perhaps this case will serve as a catalyst for revisiting current thinking related to grand jury practice.

  3. NCProsecutor says:

    I agree with you on the discovery issues. Trauma often muddles the memories of crime victims, and expert testimony can help juries understand this reality. My motto has always been, “If I don’t want the defense to have it, I need to give it to them.”

    Having said that, I know a number of prosecutors who have told me that, since the inception of our new discovery laws, they no longer routinely interview sexual assault victims because it makes it too easy for defense attorneys to play up inconsistencies in the victim’s various accounts of the crime. Like I said, I don’t agree with that view, but it’s out there.

    You should also know that there is some proposed legislation designed to widen the use of investigative grand juries, but those proposals seem aimed more at rooting out public corruption. Anyway, I remain convinced that using a grand jury to “weed out” sexual assault cases is at best unwise and at worst a not-so-subtle form of re-victimization.

  4. Marco says:

    First, a NC Grand Jury is unlike what you experienced in DC. There are no transcripts, the DA is not allowed in the courtroom, only the witnesses. In the indictments against the three lacrosse players the only witnesses are listed in the true bill of indictment signed by the Grand Jury Foreman. In this Case it was Gottlieb & Himan only.

    It is really a procedural matter only. 81 cases were heard the day that Seligman & Finnerty were indicted, none were denied. It is a rubber stamp way of obtaining an indictment without a probable cause hearing.

    It is unfair to blame the Grand Jurors because they really have no opportunity to examine the evidence. Very few indictments are ever rejected, and are issued on only the Police Investigator’s word.

    There is a special convened Grand Jury by a panel of Judges which keeps transcripts and can investigate but that is only used in Drug Trafficking cases.

    NC is badly in need of a complete overall of this system. The legislature could start by duplicating the California procedures which make mandatory transcripts available to the Defendant withing 15 days of indictment.

    Also many states are requiring DAs to present exculpatory information before the Grand Jury.

    The choice of a DA in North Carolina is a very important decision. They are truly gods in their district. The Governor or Attorney General have no power to remove them unlike many states when prosecutorial misconduct becomes evident.

    Fortunately most of the DAs in NC are good men with integrity. Nifong is an embarrassment to his colleagues.

  5. NCProsecutor says:


    Your last two sentences seem to imply that Mike Nifong is not one of the “good men with integrity.” If that is your implication, do you have any personal knowledge upon which to base that opinion? Or is it simply based on your perceptions of how he’s handling one of the thousands of cases he’s prosecuted in his career?

    I can assure you that Mike Nifong is NOT “an embarrassment to his colleagues.” As a rule, the other elected DA’s in North Carolina are sorry to see something like this happening to a good and decent prosecutor like Mike. Of course, they’re glad that it didn’t happen in their jurisdictions, and they’re glad they’re not him, and they might have wished that he’d kept his mouth shut earlier in the case, but that doesn’t make Mike an embarrassment.

    All that aside, everything else you said in your post is absolutely true. Except the part about DA’s being “gods in their district.” They are accountable to the voters, like every other elected official. Mike Nifong will face the voters in 5 days time, and they will judge his fitness to serve as their District Attorney for the next 4 years — not the commentariat on CourtTV or the Joe Cheshire-loving press corps in Raleigh.

    Oh, and there are a few DA’s in North Carolina who are good *women* with integrity… 🙂

  6. NYEsq says:

    Nifong IS an embarrassment – using his dozens(!) of public interviews with national media, he took a local small-town allegation of “sexual” (violent) assault and NEEDLESSLY made it a worldwide notorious case of white vs. black, upperclass vs. underclass, men vs. women, jocks vs. innocents, and gown vs. town

  7. NCProsecutor says:

    Don’t kid yourself into thinking that Mike Nifong was on the phone asking national news outlets to please come down and cover this rape allegation. This story was huge when it broke, and he was responding to media requests, not the other way around.

    Having said that, many prosecutors here in NC have always felt that Mike *did* say too much early on in the case, but clearly defense attorneys have made him pay dearly for that in terms of damaging discovery material leaked to the press. To be honest, I’m not sure either side can get a fair trial at this point.

    As for Mike being an embarrassment, I was responding to the contention that he was an embarrassment to his fellow elected DAs. That is not true. As for whether or not Mike is an embarrassment to the people of the jurisdiction which he serves, we’ll know about that this week as he stands for election. If he is an embarrassment to you, well, have fun with that.

  8. NYEsq says:

    “..have fun with that”? Far from it. I am appalled and embarrassed for our profession. I am an attorney in NY and I have followed this case closely. Mr. Nifong has publicly called the defendants – and their teammates -“hooligans” (being of Irish descent, I am deeply offended by this), has proclaimed that the defendants shouldn’t need lawyers if they are innocent et cetera et cetera – the list is nearly endless – I guess you, NCProsecutor, find amusement, and not embarrassment, from this “fun” – and how do you know how ALL of his “fellow” elected DA’s FEEL – oh wait, Mr. Nifong was appointed….

  9. JLK says:

    I am a Duke grad, a Philadelphia attorney who has been following the case closely. My take on this is that Nifong was convinced by Gottlieb and Himan early on that a rape had occurred. This was Nifong’s first high profile case and he lacked media savvy. He was behind in the polls to Freda Black, who made her name in the high profile Peterson case. He had just loaned his own campaign $30K, and his contributions were drying up going into March. He needed to win not only to be able to raise the money to pay himself back, but also to maximize his state pension benefits.

    This case was manna from heaven to Nifong. He did over 50 interviews in the space of a few weeks, but being inexperienced in such a setting he got ahead of the evidence. He postulated on national TV about how they held her in a chokehold, how a date rape drug may have been used, how they may have worn condoms and left no DNA, etc. despite the evidence in the police file pointing otherwise. In doing so, he raised his own profile but he also fanned racial tensions in Durham.

    He basically promised to pursue the case come hell or high water at a forum at NCCU this spring. His political base was black Durham, and they wanted indictments. This is when (in my opinion) Nifong started fudging the process, such as by specifically ordering a lineup with no fillers. Then he began posturing himself to maintain future deniability by refusing to look at exculpatory evidence or to ask hard questions of the accuser.

    At some point, it must have become clear to even Nifong that this was a hoax, but he kept with it. His current rationale is “there must be a trial because the community is so divided.” However, it is the duty of a prosecutor to pursue justice irrespective of public opinion. Everyone involved at this point knows the Duke 3 did not rape this woman and in fact that she wasn’t raped at all that night.

  10. NCProsecutor says:


    Your take on the case is totally plausible. As for whether or not the victim was actually raped, I prefer to wait and see what evidence is presented at trial rather than make conclusions based on information selectively leaked to the press by the defense team.


    I never suggested that I was having fun with any of this. All prosecutors (myself included) have to deal with the public perceptions created by this case, and we have to deal with them to a far greater extent than you do as an attorney in some far-off jurisdiction (our prospective jury pools, our friends and family, etc.). As for how I know how what the elected DAs think of this case, well, first of all, I never claimed to know how “ALL” of them feel. What I said was that “as a rule” the electeds are not embarrassed by Mike Nifong. I would hope that my detailed comments about how prosecutors work in NC might give you some hint that I know what I’m talking about, but that’s up to you.

    As for my throwaway line at the end of my last comment, well, truth be told, that was just snide and unhelpful. I apologize unconditionally.

  11. JLK says:

    NC Prosecutor-

    A number of journalists have now had access to Nifong’s entire document production, and they have uniformly stated that there is nothing more helpful to the prosecution. There is nothing “selective” about what those journalists have been given other than Nifong’s possible selective decision not to produce all of the documents yet.

    The forensic evidence produced so far is not probative of a rape. All of the eyewitnesses present at the party (including the other stripper) are going to testify that the accuser’s statement is false. The accuser has contradicted herself several times already, has a criminal history, is a serial drug abuser and has psychological problems. On top of that, the only defendant that she identified with 100% certainty has an ironclad alibi.

    Taking this case to trial is a waste of taxpayer money and shows an utter abdication of professional responsibility on the part of the prosecutor.

  12. sg says:


    As a point of curiosity, if the DA is not present in the NC grand jury, who presents the case?

  13. JJ says:

    To NCProsecutor:

    I am a DU graduate (School of the Environment ’74) and am not a lawyer. I also have followed this case closely and I can assure you that I speak for most of the people that I discuss this case with are not only embarassed (shamed) by Nifong’s conduct but are now practically terrified of the NC criminal justice system. Do not tell me or any other person with any common sense that Nifong’s remarks, procedures and conduct are acceptable to the justice system or to the NC Bar. If they are we should all be ashamed and terrified, including you and all other NC DA’s.

    JJ Wilmington, NC

  14. L says:

    I am honestly kinda surprised by how many people have just completely flip-flopped on this and now believe the Duke students are completely innocent and that their accuser is a liar of the worst kind. I do not know if they are guilty ot not, but I believe that it is _possible_ that coming from a family with money and powerful friends can buy you dropped charges and an embarrassed DA.

    I used to work on the Duke campus and I saw evidence of things I could only explain as institutional racism, sexism, and classism. Something just doesn’t add up for me. The complete and absolute 180 that the media and most everyone else has done on this doesn’t make sense.

  15. Antaeus Feldspar says:

    “I can assure you that Mike Nifong is NOT “an embarrassment to his colleagues.” As a rule, the other elected DA’s in North Carolina are sorry to see something like this happening to a good and decent prosecutor like Mike.”

    I have to wonder how NCProsecutor feels about this declaration now.

  16. Antaeus Feldspar says:

    “I do not know if they are guilty ot not, but I believe that it is _possible_ that coming from a family with money and powerful friends can buy you dropped charges and an embarrassed DA.”

    The charges were not just dropped; they were re-investigated by the Attorney General of the State of North Carolina and determined to be supported by no credible evidence. If you don’t understand how so many people could change their minds and decide that the players were falsely accused then I think you need to start by reading the AG’s Summary of Conclusions, and discover just how much of the evidence you thought there was to support a case against the players was trumped up by the police or by Nifong.